Citations
- 121 F. Supp. 2d 943
Full opinion text
MEMORANDUM OPINION
POLOZOLA, Chief Judge.
This matter is before the Court for final approval of the Joint Settlement Agreement for Medical, Dental, Mental Health, Rehabilitation and Juvenile Justice Issues (“Settlement Agreement”) which was filed with the Court on September 7, 2000 in the above captioned cases. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court set a time period for filing objections to the agreement. The Court also set a hearing for October 3, 2000 to consider any objections filed to the Settlement Agreement. A review of the record reveals that no objections have been filed. Since no objections have been filed, there is no need for the Court to conduct a hearing on the Settlement Agreement.
Therefore, the Settlement Agreement is hereby approved by the Court. These cases will be administratively closed until further order of the Court. It shall not be necessary for the parties to file any additional monthly or incident reports with the Court. However, the parties shall continue to send these reports to the Court’s expert.
This is a historic day for the State of Louisiana, the parties, and this Court. By approving this Settlement Agreement, the Court has now transferred to the State of Louisiana FULL RESPONSIBILITY for running its adult and juvenile prisons in a constitutional manner. It is this Court’s belief that the State of Louisiana is now capable of running its own prisons in accordance with the Settlement Agreement, the Constitution and laws of the United States without the assistance of a federal judge. However, should those in charge of the Louisiana prison system fail or refuse to comply with this Settlement Agreement or otherwise fail to operate its juvenile prison system in a constitutional manner, this Court will be forced to reopen the case. Thus, my final statement to the State of Louisiana is very simple — run your own juvenile prisons in a constitution-aj manner or a federal judge will be re-qmred to do so for you.
IT IS SO ORDERED.
ATTACHMENT
SETTLEMENT AGREEMENT FOR MEDICAL, DENTAL, MENTAL HEALTH, REHABILITATION AND JUVENILE JUSTICE ISSUES
TABLE OF CONTENTS
I. Introduction (¶ 1 - ¶ 9) .945
II. Definitions (¶ 10 - ¶ 19).948
III. Juvenile Justice (¶ 20 - ¶ 75) .949
IV. Medical, Dental and Mental Health (¶ 76 - ¶ 116) .966
V.Quality Assurance (¶ 117 - ¶ 121).972
VI.Compliance and Monitoring (¶ 122 - ¶ 141).975
I. INTRODUCTION
1. This Agreement is entered among the following: the United States Department of Justice as identified in ¶ 10 (the “DOJ”), the private plaintiffs as identified in ¶ 14 (the “Plaintiffs”), and the State, as defined in ¶ 19 below. This Agreement settles and resolves four lawsuits (the “Lawsuits”) concerning the juvenile justice, medical, dental, mental health, and rehabilitative services in the State of Louisiana’s secure juvenile facilities. The four Lawsuits settled by this Agreement are: (1) Williams v. McKeithen, Civ. No. 71-98 (including the following sub-dockets opened in that action: In Re: Juvenile Facilities, Civ. No. CH 97-MS-001-B; In Re: Tallulah Correctional Center for Youth, Civ. No. CH 97-0665-B-M1; In Re: Jetson Correctional Center for Youth, Civ. No. CH 97-0666-B-M1; In Re: Swanson Correctional Center for Youth, Civ. No. CH 97-0667-B-M1; In Re: Louisiana Training Institute—Bridge City, Civ. No. CH 97-0668-B-M1; and In Re: Jena Juvenile Justice Center, Civ. No. CH 98-0804-B-M1); (2) Brian B. v. Stalder, Civ. No. 98-0886-B-1; (3) A.A. v. Wackenhut Corrections Corporation, Civ. No. 00-246-CMI; and (4) United States v. Louisiana, Civ. No. 98-0947-B-l. In order to resolve the juvenile justice, medical, dental, mental health, and rehabilitation issues in this litigation, the parties have entered into this Agreement, which, if complied with within the time frames specified below, will result in the dismissal of the Lawsuits, except as provided in ¶ 9 below. The terms of this Agreement shall apply to the secure juvenile facilities operated by or on behalf of the State and any other secure juvenile facility opened during the life of the Agreement. All parties agree and recognize that the obligations contained in this Agreement and any remedies flowing therefrom are limited to conditions within the secure juvenile facilities and do not follow the juvenile after his/her final discharge from the facility. This provision shall not prevent the DPSC from continuing its current practice of providing short-term medications. This Agreement shall not increase or decrease any rights that juveniles held in secure facilities, on parole, or on probation supervision may or may not have upon their release from secure facilities.
2. As part of this Agreement, the Department of Public Safety and Corrections (“DPSC”) shall revise as necessary its policies and procedures to ensure that they are consistent with the provisions of this Agreement.
3. The State denies any allegations upon which the Lawsuits are based. The State has entered this Agreement’ in order to avoid the cost and uncertainty of litigation.
4. The United States’ Jena Agreement and the Private Plaintiffs’ Jena Agreement, both entered on or about April 13, 2000, are terminated and are of no further effect. The State agrees not to house juveniles at the Jena Juvenile Justice Center in Jena, Louisiana during the term of this Agreement.
5. Immediately upon execution of this Agreement, the parties shall jointly move the Court for an Order to conditionally dismiss the Lawsuits except as provided in ¶ 9 below. Immediately upon execution of this Agreement, the parties shall jointly move the Court for an Order terminating and rescinding all existing, orders, judgments or decrees that purport to address conditions of confinement in Louisiana’s secure juvenile facilities, except as set forth in this paragraph:
a. Consent orders. The effect of the following consent orders is stayed until either: (a) final dismissal of these actions, at which time all consent orders shall be terminated and shall have no prospective effect; or (b) 120 days following entry of an order reopening these actions:
April, 1996 Order (Bridge City Correctional Center),
November 14, 1996 Order (Swanson Correctional Center for Youth-Monroe),
April, 1998 Order (Jetson Correctional Center for Youth), and November 15, 1994 Order (Tallulah Correctional Center for Youth), as modified by orders dated February 21, 1995, November 19, 1996, December 22, 1995, November 12, 1997, November 20,1997, December 16, 1997, December 23, 1997 and March 10,1998.
b. Jurisdictional orders. The substantive effect of the following orders may have been superceded, modified or rescinded; however, these orders may continue to be cited and relied upon by the parties solely for the purpose of establishing this Court’s jurisdiction, for the purpose of establishing class counsel or prevailing party status, and for the purpose of supporting the “Attorney Fee Claims”:
June 10, 1975
Judgment adopting Special Master’s report
August 6, 1980
Original judgment on attorney’s fees/prevailing parties
January 24, 1983
Injunction to stop accepting juvenile until population limits set
February 7, 1983
Motion to set population limits on juvenile facilities
December 7, 1983
Stipulation and Consent Decree for adult facilities
April 24, 1984
Juvenile consent decree
November 26, 1986
Extension of consent decree
January 6, 1988
Extension of consent decree
October 27, 1988
Extension of consent decree
January 30, 1991
Class certification order
June 25, 1990
Original appointment of Nordyke and Denlinger
June 25, 1991
Ruling setting attorney fee rates
June 30, 1993
Extension of Consent Decrees and other Judgments
December 22, 1994
Order concerning TCCY
June 23, 1995
Order denying Motion by Transamerica Development
September 26, 1996
Order granting motion to terminate consent decrees for adult facilities except LSP and the Juvenile Facilities
April 1,1997
Order granting motion by to release adult institutions except LSP and the juvenile facilities
September 24,1998
Motion and Order Approving Settlement and terminating consent decree and supervision over LSP but preserving claims regarding Juvenile Facilities
December 9,1998
Minute Entry concerning class certification in Brian B.
April 21, 1999
Order granting motion for partial dismissal of LSP
c. Surviving Orders. The following surviving orders are not stayed; however, all surviving orders shall automatically terminate upon final dismissal of these actions (unless previously modified or terminated):
June 21, 1989
Original appointment of Court expert
August 19, 1994
Order pertaining to the appointment of the Court Expert
September 26, 1996
Order appointing Expert John Whitley
The Court shall retain jurisdiction over the claims in the Lawsuits until the final judgment of dismissal is entered.
6.The Motion to Conditionally Dismiss shall include a request for the Court to order a “fairness” hearing under Rule 23 of the Federal Rules of Civil Procedure as soon as notice can be given, pursuant to that Rule. This Agreement shall be void if the Court does not approve the settlement at that fairness hearing. The parties agree to ask the Court to hold in abeyance Plaintiffs’ motion to certify a class in Brian B. v. Stalder and A. A v. Wackenhut. If the Lawsuits are reopened, Plaintiffs may reurge these motions. In connection with the re-urging of these motions, the State agrees to permit Plaintiffs to name replacement class representatives in Williams, Brian B. and/or A. A and to waive the requirements for exhaustion of administrative remedies, provided that Plaintiffs have given the State written notice of the claims to be asserted, at least ten days prior to reurging of the motion.
7. The Motion to Conditionally Dismiss shall include a request that the Court preserve the substance of any unassert-ed cross claims and third party demands that the State may have against other defendants in any of the Lawsuits until such time as a final judgment of dismissal is entered.
8. This Agreement shall be effective on September 1, 2000. The State’s obligations under this Agreement shall arise on June 1, 2001, except to the extent specific provisions establish a different deadline.
9. This Agreement compromises and settles all claims asserted in the Lawsuits except:
a. Claims pertaining to the validity, applicability and constitutionality of the administrative remedy procedure (ARP). Plaintiffs stipulate to the entry of an order dismissing all claims and allegations related to ARPs in the Lawsuits, without prejudice to their right to reassert those claims either in new actions or in the Lawsuits if the Lawsuits are reopened in accordance with this Agreement.
b. Claims pertaining to education issues. Claims relating to education issues are the subject of a separate Settlement Agreement entered on or about November 1,1999.
c. Claims for attorneys fees. This Agreement does not purport to address Plaintiffs’ claims for attorneys fees in the Lawsuits.
II.DEFINITIONS
10. The term “DOJ” shall refer to the United States Department of Justice.
11. The terms “facilities” and “secure juvenile facilities” refer to the Jetson Correctional Center for Youth (JCCY), the Swanson Correctional Center for Youth — Monroe (SCCY), the Bridge City Correctional Center for Youth (BCCY), the Swanson Correctional Center for Youth — Madison (SCCY-M) (formerly known as the Tallulah Correctional Center for Youth), the Juvenile Reception and Diagnostic Center (“JRDC”), and any other facility used for the housing of juveniles owned or operated on behalf of the State during the operation of this Agreement, but excluding juvenile detention facilities.
12. The term “intake” refers to the day that the individual arrives at the reception and diagnostic center for admission into the secure juvenile facilities.
13. The term “juvenile” refers to any juvenile who has been adjudicated delinquent and is residing at any facility during the operation of this Agreement.
14. The term “Plaintiffs” refers to the non-governmental agency private plaintiffs in Williams v. McKeithen, Civ. No. 71-98 (M.D.La.); Brian B. v. Stalder, Civ. No. 98-0886-B-l; A.A. v. Wacken-hut Corrections Corporation, Civ. No. 00-246-C-M1; and the suits entitled In Re: Juvenile Facilities, Civ. No. CH 97-MS-001-B; In Re: Tallulah Con"ec-tional Center for Youth, Civ. No. CH 97-0665-B-M1; In Re: Jetson Correctional Center for Youth, Civ. No. CH 97-0666-B-M1; In Re: Swanson Correctional Center for Youth, Civ. No. CH 97-0667-B-M1; In Re: Louisiana Training Institute — Bridge City, Civ. No. CH 97-0668-B-M1; and In Re: Jena Juvenile Justice Center, Civ. No. CH 98-0804-B-M1.
15. The term “serious mental illness” shall include disorders of mood and cognition (with the exception of mental retardation) that significantly interfere with functioning in at least one essential sphere of the juvenile’s life, e.g.: psychotic disorders, mood disorders, the aggressively mentally-ill, and juveniles who exhibit self mutilating or suicidal behavior.
16. The term “mental retardation” refers to significant subaverage intellectual functioning with an Intelligence Quotient (IQ) of 70 or below with concurrent deficits or impairments in present adaptive functioning in at least two of the following areas: communication, self care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety, with onset before age eighteen.
17. The term “Provider” shall refer to a department, agency or division of Louisiana state government with particular expertise in the provision of medical, dental, and mental health care contracted by DPSC to provide medical, dental, and mental health care to juveniles.
18. The term “serious injury” means any injury that threatens a juvenile’s life or limb, or one that requires urgent treatment by a doctor, or severely restricts the juvenile’s usual activities, or requires follow-up by a doctor.
19. The term “State” shall refer to the Governor, the Secretary of the DPSC, the Secretary of the Department of Health and Hospitals and all Departments and Agencies of the State of Louisiana, and their employees, agents, contractors, and successors, who are wholly or partially responsible for the care of juveniles confined in the juvenile facilities, with the understanding that the Governor’s obligations under this Agreement have been delegated to the Secretary of the DPSC.
As used in this Agreement, the term “State” shall not include or mean the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU”) or any of the institutions under its management or supervision. Notwithstanding any other language or provision contained in this Agreement, this Agreement shall not be construed to create any obligations flowing from Provider or LSU to Plaintiffs or DOJ. As used in this Agreement, the “State” shall not include the City of Tallulah or LaSalle Parish Hospital District Number 2.
Ill JUVENILE JUSTICE
A. Protection from Abuse and Violence
20. The State shall establish and implement policies and procedures for the purposes of providing juveniles with safe and humane living conditions, protection from physical, sexual, and mental abuse by facility staff, and from juvenile-on-juvenile violence and sexual abuse, and other forms of victimization (such as “strong-arming”).
21. The State shall continue to advise all staff and juveniles on a regular basis that violence will not be tolerated and that the following conduct by either staff or juveniles is strictly prohibited in all of the facilities and will result in disciplinary sanctions and referral for criminal prosecution, where warranted: (a) sexual abuse, (b) physical abuse, (c) emotional abuse, (d) corporal punishment, and (e) staff permitting, enticing, or inducing juveniles to assault each other. The State shall also immediately inform juveniles and staff that those who report alleged abuse will be protected from retaliation.
22. Within two months of the effective date of this Agreement, the State shall require all mandatory child abuse reporters at the facility to acknowledge their obligation in accordance with State law to report suspected child abuse and inform all mandatory reporters of the office and telephone number to which such suspected abuse should be reported. The State’s obligation under this section will be discharged upon obtaining employees’ signatures acknowledging their understanding. “Acknowledgment” training will be provided annually to all mandatory child abuse reporters.
If the Louisiana Department of Social Services contacts the State regarding an allegation of abuse, the State will insure that the allegation has been, or is being, investigated.
23. The State shall ensure immediately that all juveniles have adequate means to report abuse, including at a minimum, providing the juveniles with direct and confidential access to the Project Zero Tolerance (“PZT”) Hotline. The State shall ensure that all calls to the hotline are reviewed at a minimum twice daily by supervisory investigators.
Within two months of the effective date of this Agreement, the State shall ensure that there are at least two fully operational telephones in each of the housing units, at least one operational telephone in each counselor’s office, and at least one operational telephone in the infirmary that juveniles may use to place a PZT call. The State shall ensure that a maintenance order is placed within one business work day for every juvenile telephone that is in need of repair and will make best efforts to ensure that the phone is repaired as soon as possible.
24. Within one month of the effective date of this Agreement, the State shall ensure that: (a) every juvenile who reports to a facility infirmary with an injury or pain shall be questioned by a health care staff, outside the hearing of officers or other juveniles, regarding the cause of the injury or pain; and (b) if in the course of the juvenile’s infirmary visit abuse is alleged or health care staff suspects abuse, the health care staff shall call the PZT Hotline following delivery of necessary medical care and adequately document the matter in the juvenile’s medical record, fill out an incident report, and log the PZT call in the infirmary log.
25. Within three months of the effective date of this Agreement, the State shall ensure that any allegation or incident involving neglect, abuse, excessive use of force, use of any type of chemical restraint, or incident/accident resulting in serious injury is adequately reviewed, investigated, and documented in a timely manner. If a full investigation (see ¶ 26 a — i) is not warranted, then the reasons why a full investigation is not conducted shall be documented in writing. In cases where a juvenile withdraws an allegation, the investigators shall record the investigation on the log, conduct a preliminary investigation to determine the circumstances and reasons for the withdrawal, and in cases where it is warranted, complete the investigation of the abuse allegation. In no case shall an investigator do an investigation on an incident in which he or she was personally involved. Whenever practicable, PZT Investigators will interview juveniles outside of school hours; however, a juvenile may be removed from school by a PZT investigator as part of a PZT investigation, and the State shall not be required to comply with all academic and vocational program participation requirements for that juvenile for that day.
A letter confirming the outcome of the investigation shall be sent to parents/guardians or other close family members when those persons have identified themselves at the time of referral and have provided a mailing address.
26. The State shall promulgate and implement system-wide policies for the investigation of allegations of neglect, abuse, excessive use of force, and incidents and/or accidents resulting in serious injury. The policies shall identify the types of actions that normally would be taken in such an investigation including:
a. Taking photographs of all visible injuries;
b. Securing, examining and photographing all physical evidence;
c. Interviewing the alleged victim and perpetrator in individual, private, in-person interviews with a record made of the substance of the interview (written statements by staff or juveniles shall not be substituted for personal interviews);
d. Identifying and interviewing privately, separately and in-person, all possible witnesses, including other juveniles and staff in the building or unit at the time of the incident;
e. Examining the juvenile’s and staff member’s institutional, personnel and other records, including any prior allegations of abuse against the staff person whether substantiated or not;
f. Staff and juvenile witnesses to the alleged abuse are not, at any time after an incident, questioned or interviewed by staff who due to their assignments and/or relationship with the alleged perpetrator have or appear to have a conflict of interest in investigating the allegation;
g. Whenever there is reason to believe that a juvenile may have been subjected to physical sexual abuse, the juvenile is examined by non-DPSC health care personnel with special training and experience in conducting such assessments;
h. For all investigations not completed within ten working days, notification detailing the need for additional time and an estimate of the additional time needed shall be provided to the supervisory investigators; and
i. The investigation makes an explicit determination of whether any facility staff knew of, but did not report, the alleged abuse or provided false information during the investigation.
27. Every PZT investigation shall result in a written report. The report contents will be appropriate to the extent of investigation required to issue a finding. The report shall explicitly and separately set forth the following as appropriate to the investigation:
a. each allegation of wrongdoing investigated;
b. the name(s) of all alleged victims and perpetrators;
c. the names of all witnesses;
d. the names of all persons interviewed during the investigation;
e. all documents reviewed during the investigation;
f. whether videotapes were examined and, if not, why not;
g. all other sources of evidence considered;
h. all PZT investigations and their results, involving the alleged victim(s) and perpetrators);
i. the investigator’s findings;
j. the investigator’s reasons for his or her conclusion.
A copy of the summary/conclusion of the investigation of a substantiated allegation will be placed into the file of the juvenile who is the subject of the investigation.
28. The State shall employ trained, independent investigators at each facility with adequate experience and training in investigations to accomplish these tasks. The investigators shall prepare comprehensive written investigation reports, setting forth their complete investigative findings and the basis of their findings. The reports shall be simultaneously forwarded to the facilities’ wardens and supervising PZT investigators at Headquarters. These investigators shall report to the wardens of the facilities. If the warden is personally involved in a particular incident, then a PZT investigator assigned from DPSC Headquarters shall conduct the investigation.
29. The State shall employ at least the following number of FTE investigators within 12 months of the effective date of the Agreement:
JCCY 3
SCCY 2
BCCY 1.5
SCCY-M 3
In addition, the State shall employ two supervisory investigators who shall supervise and assist the investigators and who shall monitor all calls made to the PZT Hotline. The supervisory investigators shall report to the Office of the Secretary and shall implement policies and procedures for the investigation of allegations of neglect, abuse, violence, excessive use of force, and serious injury system-wide.
30. Within three months of the effective date of this Agreement, the State shall ensure that:
a. all employees or contractors against whom physical abuse or sexual misconduct is substantiated shall be appropriately processed through a performance appraisal action or disciplinary action.
Where significant physical abuse or sexual misconduct is substantiated, or where there is a pattern of substantiated abusive behavior, the employee or contractor shall be terminated and shall not knowingly be employed at another secure juvenile facility;
b. allegations of criminal sexual misconduct and physical abuse by staff resulting in lacerations requiring sutures, fractures, serious injuries, or death are referred for evaluation of the appropriateness of criminal prosecution to state authorities, the United States Attorney’s Office in the district in which the facility is located, and the Criminal Section of the Civil Rights Division of the Department of Justice; and
c. Any staff member under investigation for physical abuse or sexual misconduct shall be separated from any contact with juveniles or placed on leave if the State has a reasonable basis to believe that abuse or sexual misconduct warranting termination of employment may have occurred.
31. The State shall keep records of the results of every PZT investigation at the facility and in a central registry maintained by the State. These records shall be maintained in a manner that permits investigators and other appropriate personnel to easily access every PZT investigation involving a particular staff member or juvenile. A copy of the summary/conclusion portion of every PZT investigation substantiating misconduct by staff shall be permanently placed in the staff member’s personnel record.
32. Within nine months of effective date of this Agreement, the State shall establish the Multiple Allegation Database (MAD). This database will be used to screen for staff with multiple allegations to determine those whose behavior may need to be modified.
a. The MAD shall collect and record the staffs complete name, the date of each allegation of abuse or misconduct against the staff, the date each alleged event occurred, the name of the staff or juvenile making the allegation of abuse or misconduct against the staff, the identifying number of the investigation done in response to the allegation, the outcome of the investigation, and the discipline, training, or counseling imposed or mandated as a result of the investigation, if any.
b. The MAD shall be maintained during the staffs employment and for five years after the staff leaves employment.
c. The Youth Programs Compliance Division shall review staff with three or more allegations of abuse or misconduct relating to safety or welfare of juveniles within a two-year period and, if warranted, take appropriate follow-up action (such as meeting with the staff, recommending remedial training, counseling, transfer, re-assignment, or disciplinary action).
33. As part of each PZT investigation, investigators shall examine the PZT investigation history of the parties involved in the current investigation. This shall include reference to the central PZT registry maintained by the State.
34. The State shall document in the personnel record of every person hired after the entry of this Agreement that the facility has consulted the facility records and the central PZT registry to determine whether the candidate has ever been the subject of a substantiated PZT investigation at any facility in the State and to review any other complaint history.
35. No facility may knowingly hire any individual who has had an allegation of abuse substantiated against him or her that resulted in termination of employment or resignation to avoid termination. In addition, the MAD shall be checked as part of the pre-employment review process. And, to the extent possible, the MAD shall be updated within 180 days of creation to include all cases, of substantiated abuse that resulted in termination or resignation to avoid disciplinary action within the previous 365 days.
36. Within four months of the effective date of this Agreement, the State shall confirm that criminal background checks, as described herein, have been completed on all existing staff and the State will complete criminal background checks on all prospective employees and existing employees whose background check does not conform to the requirements of this paragraph. A background check shall include checking with the National Crime Information Center and the Louisiana Computerized Criminal History system. The State shall com-píete the above checks on all prospective employees before they have any contact with juveniles. Additionally, finger prints of all employees, existing and prospective, shall be submitted to the State Police in accordance with the Louisiana Child Protection Act. The State shall take appropriate action to protect the welfare and safety of the juveniles based upon the information obtained from the checks. By April 1, 2002, the State shall provide the United States with information identifying all correctional officers employed on March 15, 2002 in a manner sufficient for the United States to review each officer’s arrest and conviction records through the National Crime Information Center. During the Private Plaintiffs’ and the United States’ compliance tour, the State shall provide to the United States evidence of the specific personnel action taken regarding any employees identified by the United States with criminal convictions or arrest records.
37.Within 12 months of the effective date of this Agreement, the State shall install round-the-clock closed circuit video cameras in the following areas of Louisiana’s juvenile facilities: common areas of administrative segregation/single cell housing units, common areas of medical care areas, dining halls, dormitory sleeping areas, and dormitory day rooms. Cameras will be positioned in order to eliminate and/or reduce blind spots. The system shall record video from each camera at a rate of not less than 7.5 frames per second. All tapes shall be retained for a period of 50 days, except that any tape recording of an incident that is the subject of a(l) PZT investigation, (2) referral for prosecution or actual criminal prosecution, (3) civil lawsuit, or (4) request by counsel for an investigation to be conducted or for the tape to be retained shall be maintained indefinitely. PZT investigators shall review at least 12 hours of random videotape footage per month per institution.
38. The State shall not use corporal punishment on juveniles.
B. Staffing/Capacity
39. The State agrees that the juvenile facilities shall be subject to the following population limitations as of the effective date of this Agreement:
Swanson Correctional Center for Youth — Madison Unit 512
Jetson Correctional Center for Youth 600
Swanson Correctional Center for Youth — Monroe 370
Bridge City Correctional Center for Youth 180
a. The State agrees that, within 3 months of the effective date of this Agreement, the capacity of the individual housing units within each of the juvenile facilities will be limited in accordance with the schedule in ¶¶ 40-43.
b. The State may exceed the capacities of residential dorms by two float beds on a temporary basis (up to four days) in order to accommodate transfers or other movements of juveniles within the facility. The State will not, however, increase the capacity of a residential dormitory — even on a temporary basis — if such an increase would violate good correctional practice or would violate State Fire Code limitations. The use of float beds under this provision shall not result in an increase of the overall population limit for any facility, as previously set forth in this paragraph.
c. Within 12 months of the effective date of this Agreement, the State shall post correctional officers and/or other direct care workers in housing units as set forth in ¶¶ 40-43. Correctional officers assigned to residential units shall accompany the juveniles housed in those units on a roughly proportional basis throughout the day.
d. Whenever three direct care staff are assigned to a residential unit, at least two of those staff members must be correctional officers.
40. Swanson Correctional Center for Youth — Madison
a. No staffing is required for individual quads of Java, Kentucky or Louisiana if quad is not occupied.
b. Echo is removed from the capacity count and will be a recreational building.
c. If the population of any dormitory is reduced to 25 or below, then the 3 ■ p.m. — 11 p.m. swing shift may be eliminated.
d. On weekends, one full-time staff member (from the above chart) who will receive training appropriate to his or her duties will structure leisure activities for each dorm or cellblock.
41. Swanson Correctional Center for Youth — Monroe
a. If the population of any dormitory except the APD is reduced to 25 or below, then the 3 p.m. — 11 p.m. swing shift may be eliminated.
b. On weekends, one full-time staff member (from the above chart) who will receive training appropriate to his or her duties will structure leisure activities for each dorm or cellblock except that Holly A, B, and D shall be considered one housing unit for purposes of this paragraph.
c. When Cypress A converts to the mental health unit, an additional 24-hour post will be added and the 16 hour rover post will be eliminated. The overall capacity will then increase from 370 to 386 beds.
42. Bridge City Correctional Center for Youth
a. If Brown Dormitory is reduced to 36 or below, staffing may be reduced to two 24-hour posts and one 3 p.m. — 11 p.m. post.
b. On weekends, one full-time staff member (from the above chart) who will receive training appropriate to his or her duties will structure leisure activities for each dorm.
43. Jetson Correctional Center for Youth
a. If the population of any dormitory is reduced to 25 or below, then the 3 p.m. — 11 p.m. swing shift may be eliminated.
b. If the population of Rosebud or Ivyl-eaf is reduced to 36, then one of the three 24-hour posts may be eliminated but one 3 p.m. — 11 p.m. staff member shall be added.
c.On weekends one full-time staff member (from the above chart) who will receive training appropriate to his or her duties will structure leisure activities for each dorm and cellblock.
44. Except as provided below, the State shall not permit correctional officers working in juvenile housing units to work more than 120 hours in any 14-day period, nor more than 5 consecutive days. During an emergency, the Warden may initiate a variance to this paragraph. The definition of emergency shall not include problems associated with under-staffing.
45. Within three months of the effective date of this Agreement, the State shall develop a plan, timetable and performance objectives for reducing turnover and vacancy rates for direct care staff. The State shall make their best efforts to reduce the annualized turnover rate of direct care staff in each facility to below 100%, and the State shall make their best efforts to maintain the number of vacant positions in each facility at no more than 15% of budgeted positions within six months of the effective date of this Agreement. The State shall make their best efforts to reduce the annualized turnover rate of direct care staff in each facility to below 50%, and the State shall make their best efforts to maintain the number of vacant positions in each facility to no more than 5% of the budgeted positions, within one year of the effective date of this Agreement.
1. Direct Care Staff Training
46. Within 23 months of the effective date this Agreement, the State shall ensure that all staff who have direct contact with juveniles are adequately trained and can demonstrate competence in the following areas:
a. stages of adolescent development;
b. communication skills, including specific instruction on verbal de-escalation techniques;
c. behavior management and the management of aggressive behavior;
d. basic training relating to juveniles with mental health issues, including recognizing signs of mental retardation, developmental disabilities and mental illness and appropriate methods of interaction with such juveniles; grief and loss among juveniles; and measuring and monitoring behavior changes;
e. crisis prevention and intervention, including the prevention and intervention in suicidal behavior and self-mutilation;
f. basic Constitutional and legal rights of juveniles in juvenile facilities;
g. report writing;
h. basic training relating to medical care, including basic medical terminology; recognizing and responding to seizure disorders; common side effects of prescription and non-prescription medication; and confidentiality of medical information;
i. the physical and emotional needs of pregnant residents (for staff working with female juveniles);
j. universal precautions to prevent infection with TB and AIDS;
k. certification in first aid and cardiopulmonary resuscitation;
l. accommodations needed for mentally ill and physically or developmentally disabled juveniles;
m. fire safety and evacuation procedures and conducting of regular emergency evacuation drills;
n. use of force policy; and
o. Project Zero Tolerance and the grievance system.
47. Within 23 months of the effective date of this Agreement, all direct care staff and all case workers shall be taught effective, non-punitive ways to manage juveniles. Case workers shall have a working knowledge of the rehabilitative and/or mental health treatment plans of the juveniles in their care. Direct care staff shall be provided enough information by caseworkers regarding treatment and/or rehabilitative issues of the juveniles in their caseload to facilitate the direct care staffs supervision of the juveniles.
48. Within 23 months of the effective date of this Agreement, the State shall ensure that all staff who have regular and routine contact with juveniles are adequately trained concerning the standards for physical management of juveniles and i,That constitutes abuse.
a. Employees will take all reasonable steps to minimize situations requiring a use of force and to minimize the amount of force used in those situations. When possible, actions other than use of force, such as staff presence, verbal directions and warning, crisis intervention techniques, and passively removing a juvenile from an area of group activity without the use of physical handling, will be used;
b. Force will be used only as a last resort to control the juveniles;
c. The amount of force used will be proportional to the threat to which it is a response and cease when the resistance ceases;
d. Force may be used only:
i. To prevent an escape;
ii. To prevent an act which could result in death or severe bodily harm to the juvenile or another person;
iii. To defend one’s self or others against a physical assault;
iv. To separate participants in a fight;
v. To prevent substantial damage to property; and
vi. When necessary, to enforce legal orders and instructions.
e. Whenever possible, force will not be used against juveniles with mental illness or mental retardation before appropriate medical, mental health, or counseling personnel can be called to the scene.
f. The first action taken to gain control will be direct, verbal instructions to cease the behavior, unless the employee perceives that life or health will be jeopardized, or that there is a substantial threat to security.
g. When determining the need to use force, factors to be considered include but are not limited to: lack of appropriate response to repeated direct orders and other efforts to temper the situation, severity of the situation and/or behavior, threat to self or others, and disruption to the unit or program.
The State shall ensure that within twenty-three months of the effective date of this Agreement and presentation to the Plaintiffs, the DOJ and the Court Expert of the training course material, all staff who have contact with juveniles shall attend a competency-based training course in restraint methods that will include passive restraint methods. Failure of existing staff to successfully complete the program will result in adverse performance appraisal action and the training will be rescheduled. The State will use the performance appraisal to remove staff who repeatedly fail to meet the requirements of this paragraph. Newly recruited or hired staff must successfully complete the training prior to having any contact with juveniles. The training program shall be tailored to adolescent correctional populations, rather than adult correctional populations, and will include communication techniques, basic counseling, conflict resolution, therapeutic interventions, and the physical and emotional needs of adolescents in addition to other accepted physical management techniques. The material for the course shall be presented to the Court Expert, the DOJ and Plaintiffs for review prior to adoption.
49. All new correctional officers shall receive a minimum of 120 hours of pre-service training. All other new staff shall receive a minimum of 40 hours of pre-service training. All staff with regular or daily contact with juveniles, including correctional officers, shall receive an additional 40 hours of training each year. Staff with minimal contact with juveniles such as clerical/office staff shall receive an additional 16 hours of training each year. Pre-service training and annual training will include topics as described in ¶ 46. Under no circumstances shall newly recruited or hired direct care workers be assigned to supervise juveniles until they have successfully completed competency based testing in all of the areas of training set forth in ¶48. This shall not apply to supervised on-the-job training. Correctional officers who transfer from adult institutions to juvenile institutions must complete the components of training related to juveniles prior to assuming their duties. Failure of existing staff to successfully complete the program will result in adverse performance appraisal action and the training will be rescheduled. The State will use the performance appraisal system to remove staff who repeatedly fail to meet the requirements of this paragraph. The State shall meet the requirements of this paragraph within twenty-three (23) months of the effective date of this Agreement.
2. Positive Behavior Management/Discipline
50. The State shall develop and implement within 23 months of the effective date of this Agreement a uniform positive behavior management system for juveniles in the facilities. The system shall be designed to provide incentives for positive behaviors and shall define specific disciplinary consequences for specific negative behaviors. The system shall be explained orally and in writing to all juveniles during the intake and orientation process. The explanation will include discussion of the adverse effects on early release consideration that Schedule B disciplinary reports can have.
51. Within 23 months of the effective date of this Agreement, staff shall be instructed and trained to address minor behavior problems through informal counseling and the use of the positive behavior management system (including through the withdrawal of privileges).
52. Upon receipt of a Schedule B disciplinary report, a juvenile shall have an opportunity to meet with a designated staff member to discuss the disciplinary report. The designated staff member shall offer to aid the juvenile in any disciplinary hearing on the disciplinary report and shall provide such assistance if asked.
53. Every juvenile who receives a Schedule B disciplinary report shall receive a disciplinary hearing pursuant to disciplinary procedures as promulgated by the DISCIPLINARY RULES AND PROCEDURES FOR JUVENILE OFFENDERS, First Edition, 1993 as amended by memo of November 19, 1996, except as modified by this document. The polices and procedures shall include:
a. Written notice describing the alleged violation(s);
b. Impartial hearings before a disciplinary committee consisting of two employees representing different programs of the institution. The disciplinary committee shall not include any staff person who was involved in the issuance of the disciplinary report. The entire hearing shall be held in private and tape recorded and shall result in written findings of fact and disposition. The tape shall be kept indefinitely;
c.Right to an appeal.
C. Classification
54. The State shall issue and enforce classification criteria regarding housing assignments. The criteria shall include applicable risk factors based on age, gender, maturity, size, offense history, institutional behavior and/or program participation, offense, education, mental health history and any special needs of the juveniles.
55. Staffings shall be used to develop reports to courts of continuing jurisdiction, updating of the case plan, and (except for STOP/LITE/juveniles and juveniles sentenced under provisions of Louisiana Children’s Code Article 897.1) determining if a juvenile has met the guidelines for or should otherwise be considered for a recommendation for reassignment, release, or discharge from a secure setting. Staffing determinations/recommendations shall be based upon guidelines which primarily consider treatment protocols and/or continued treatment provided through community/non secure programs, custody level, progress in institutional educational, vocational treatment programs and/or approved educational/vocational and exit plans.
Staffings shall be held in private and shall normally be attended only by those staff involved in the staffing. Other staff such as the case worker’s supervisor, Warden or other administrators may attend as deemed necessary for supervision/observation purposes. Each staffing shall be attended by the case worker and at least two of the following individuals: one of the juvenile’s teachers (who shall be the juvenile’s special education teacher if the juvenile is receiving special education services), the school’s guidance counselor/school psychologist/school social worker, a security staff member who supervises the juvenile in the juvenile’s living unit; a mental health professional providing individualized services to the juvenile; or a member of the medical staff who is familiar with the juvenile’s medical care if the juvenile is receiving on-going medical treatment (e.g., for chronic health care needs). If not represented at the staffing, written comments or reports shall to be used in the staffing to ensure that education, medical, mental health and security activities are considered. The juvenile shall be encouraged to attend and participate in the discussion. If a juvenile is not making progress, the treatment team shall discuss strategies for addressing the impediments to progress and shall modify the treatment plan accordingly.
56. Any decision that results in an extension of time a juvenile must spend in a short term program or results in removal from a short term program shall be personally reviewed by the facility warden, deputy warden or assistant warden who shall review the relevant documentation prior to determining whether to approve the decision for the extension. Notice and reasons for the extension will be provided to the court of jurisdiction and the juvenile’s last known attorney of record.
57. Within 28 months of the effective date, of this Agreement, the DPSC shall develop and implement guidelines for the placement of juveniles in specialized behavior management units and such guidelines shall take into account the medical and mental health status of the juvenile, and shall provide, at a minimum:
a. For the criteria by which a juvenile can be initially transferred to such a unit, which shall include a hearing;
b. For documentation of all reasonable less restrictive alternatives attempted before the decision was made to place a juvenile in such a unit, unless the severity of the offense indicates otherwise;
c. For the development of a written, individualized and detailed program plan that shall set forth measurable short-term goals and concrete criteria for the juvenile’s removal from the unit and be provided to the juvenile. The State shall attempt to complete the program plan within 72 hours of placement, exclusive of weekends and holidays;
d. Appropriate programming for special needs juveniles placed in these units;
e. That the warden of a facility approve the decision to transfer a juvenile to such a unit. Where such assignment results in a transfer to a different facility, it must be approved by both wardens, where applicable, or by the Assistant Secretary of the Office of Youth Development if the wardens do not agree.
f. DPSC shall provide to the Provider a list of juveniles transferred to a specialized behavior unit.
D. Access to Counts
58. The State shall establish and implement policies and procedures to assure that:
a. juveniles have meaningful access to telephones for privileged communications with their attorneys.
b. juveniles have meaningful and confidential attorney-client communications through the mail. No privileged mail shall be opened except by the intended recipient except that correspondence may be opened for contraband if it is opened in the presence of the juvenile.
c. The State shall provide adequate paper, pens/pencils, envelopes and postage to indigent juveniles for legal communications.
d. A juvenile’s right to confidential communications with attorneys is protected.
59. Within four months of the effective date of this Agreement, the State shall fund three new staff attorney positions and three new paralegal positions for the Louisiana Indigent Defense Assistance Board, which positions shall be dedicated to representing juveniles in secure custody in connection with appeals of their adjudications and modifications of their disposition. These attorneys and paralegals may also assist juveniles in secure facilities by referring those juveniles to other attorneys for possible representation in pursuing claims arising out of their conditions of confinement.
60. The State shall cooperate with attorneys representing juveniles in secure facilities in making those juveniles’ institutional records available in connection with any appeal or modification of their dispositions.
E. Chemical Agents
61. Upon execution of this Agreement, the only chemical agent that may be kept or used shall be 100% OC spray. Only the Warden, Deputy Warden or Assistant Warden, or when they are not present at the facility, the highest ranking officer at the facility, shall be permitted to authorize the use of the spray. The authorizing Warden or officer must be present at the use of the spray. They may not delegate this authority to any other person. Only employees specifically trained in the use of chemical spray shall be permitted to use the spray. The chemical spray shall not be intentionally sprayed in the face of any juvenile. Employees shall be trained to not intentionally spray juveniles in the face. The State shall ensure that the Warden, Deputy Warden or Assistant Wardens are trained in the correct use of these sprays to prevent excessive exposure, the hazards associated with such sprays, and the first aid response to exposure situations. Within two months of the effective date of the Agreement, all use of chemical agents shall be videotaped, with sound recording, and the tape of the incident shall be maintained for the duration of this Agreement for inspection by the Plaintiffs, the DOJ, and the Court Expert. The State shall ensure that the chemical spray is only used under the following terms:
a. Chemical agents shall not be used except under the conditions set forth below and with prior approval, after personal observation of the situation, from the Warden, Deputy Warden or Assistant Warden if one of these officials is at the facility. If the Warden, Deputy or Assistant Warden is not at the facility, prior approval may be given, after personal observation of the situation, by the highest ranking security officer on duty at the facility. However, such approval shall not be required in the case of a large-scale disturbance (such as an attempted mass escape) that poses an imminent danger to the public, staff or other juveniles, so long as in such an event the Warden, Deputy or Assistant Warden is notified as soon as practicable;
b. Chemical agents shall not be carried on the person of any individual. Chemical agents shall not be stored in any eellblock or living area, but shall be securely stored in a separate location. Chemical agents shall not be removed from this secure storage area unless (1) for use in staff training (2) for product disposal or (3) as authorized pursuant to subsection (a) in response to a situation described in subsection (c), provided however that the authorizing official need not make a personal observation of the situation prior to authorizing the removal of the chemical agents from the secure area.
c. Chemical agents shall only be authorized when:
i. A juvenile is posing a direct and immediate threat of injury to staff or another juvenile;
ii. The juvenile is creating a sustained disturbance that jeopardizes the effective monitoring and supervision of the unit to the extent that the safety of juveniles or staff is endangered, which persists despite efforts to de-escalate without the use of chemical agents, and the use of chemical agents is the only means to avoid a physical confrontation that would likely result in injury to juveniles or staff; or
iii. The use is necessary to prevent an escape.
The State shall ensure that exposed juveniles are seen by medical staff whenever spray is used. The State shall ensure that juveniles with known chronic respiratory conditions (including asthma) are not subjected to chemical spray. However, this shall not prohibit the use of chemical spray when -it is necessary to prevent or quell a large ■ scale disturbance where such juveniles are present. In no event shall staff use a chemical spray as punishment, discipline, retaliation, for the purpose of inflicting pain, for staffs convenience, or after handcuffs have been applied.
62. Every usage of chemical spray shall be documented in a chemical agent report and every removal shall be documented in a log maintained for this purpose. The chemical agent report shall describe the behavior of the juvenile with sufficient particularity to enable a reviewer to determine independently whether the above requirements of ¶ 61 have been complied with (i.e., the documentation shall not simply restate, paraphrase or refer to the above conditions warranting use of chemical spray).
63. A copy of the Accident and Injury Report (“A & I”) and UOR shall be placed in the file of the juvenile against whom the chemical restraint was used.
F. Mechanical Restraints
64. Within two months of the effective date of this Agreement, the State shall not use mechanical restraints except under the following circumstances. The use of mechanical restraints shall be limited to the minimum period of time necessary to enable the juvenile to gain control of his behavior. When a handcuff belt is not used, handcuffs shall be applied behind the back in a manner to minimize the risk of injury to the juvenile and the staff person responsible for supervising the juvenile.
The State shall not use mechanical restraints except under the conditions set forth below:
a. For transportation of juveniles outside the facility, the State may use handcuffs, leg irons, and/or handcuff belts;
b. For movement of juveniles within the facility, no mechanical restraints shall be used except under the following conditions. Handcuffs and/or a handcuff belt may be used if the facility has documented that the juvenile poses a current escape risk or has engaged in a recent pattern of assaultive behavior toward staff or other juveniles, as determined and authorized by a ranking security shift supervisor. Leg irons may only be used for transportation within the facility if the conditions of subparagraph (d) are met;
c. For movement of juveniles within the facility to transport a juvenile from general population to a restrictive housing area after a fight or other serious incident, handcuffs and/or a handcuff belt may be used;
d. For control of a juvenile who, after less restrictive measures have not been successful, continues to engage in aggressive or assaultive behavior that is a clear and present danger to the juvenile, another juvenile, staff, or the security of the facility, a handcuff belt, and/or leg irons may be used. In this instance, such use of mechanical restraints shall require continuous one-on-one physical supervision and must be approved by the ranking supervisor (Captain or higher) on duty at the facility. The staff person shall ensure that the physical needs of the juvenile are met promptly; •
e. For intra-facility movement of juveniles in administrative segregation for disciplinary reasons, handcuffs and/or a handcuff belt, may be used.
Although a routine medical examination after the use of mechanical restraint is not required, immediate medical treatment shall be provided if there is a visual indication of an injury or if the juvenile identifies a specific medical complaint.
No other forms of mechanical restraints may be used (including 4 or 5 point restraints and the handcuff “black-box”). This, however, does not apply to medical or mental health restraints ordered by a medical or mental health professional.
65. Every use of a mechanical restraint, other than as authorized under ¶ 64(a) and (e), shall be documented. The use of mechanical restraints shall be documented on a UOR or in a log maintained for this purpose. Documentation to reflect compliance with ¶ 64 shall describe the behavior of the juvenile with sufficient particularity to enable a reviewer to determine independently whether the above requirements of ¶ 64 have been complied with (i.e., the documentation shall not' simply restate, paraphrase or refer to the above conditions warranting use of mechanical restraints).
66. The State shall promulgate a policy setting forth which staff are permitted to carry mechanical restraints and where all other mechanical restraints are to be stored.
67. Every facility shall maintain inventory log books for all mechanical restraints. One log book shall be kept at each location where mechanical restraints are stored. The log book shall contain the following information for mechanical restraint devices in the facility:
a. A unique identifying number recorded in the log book and on the device (such as a serial number);
b. For every time the device is removed from its storage location:
i. The date and time of its removal;
ii. The name of the person removing the device;
iii. The name of the person authorizing its removal and a brief statement of the reason (e.p., transportation outside the facility);
iv. The date and time the device was returned; and
v. A statement of whether the mechanical restraint was used while the device was checked out.
G. Living Conditions
68. The State shall establish and implement policies and procedures assuring adequate sanitation in the kitchen and eating areas, as well as all living areas. Such policies and procedures shall include:
a. The provision of cleaning supplies on a daily basis in order that the living and sleeping areas may be cleaned;
b. Regular, daily cleaning of the shower and toilet area of each dormitory and cellblock;
c. Thorough daily cleaning, using accepted institutional methods, of the kitchen and eating areas.
69. Within twelve months of the effective date of this Agreement, female staff shall not regularly or routinely view male juveniles toileting or showering and male staff shall, not regularly or routinely view female juveniles toileting or showering unless t